In the Philippines, marital infidelity can be a criminal offense. A wife's infidelity is punished as adultery under Article 333 of the Revised Penal Code, while a husband's is punished as concubinage under Article 334. The two crimes have different elements and penalties, only the offended spouse may file, and both the erring spouse and the third party must be charged together.
Filipinos often ask whether a cheating spouse can be sent to jail. The answer is yes — the Revised Penal Code still treats marital infidelity as a crime — but the law is far from even-handed. It defines a wife’s infidelity and a husband’s infidelity as two separate offenses with different elements, different penalties, and very different chances of conviction. This commentary explains both, who may file, and the practical realities.
Is Infidelity a Crime in the Philippines?
Yes. Unlike many countries that have decriminalized adultery, the Philippines still punishes marital infidelity under the Revised Penal Code (Act No. 3815). But the Code does not use a single, gender-neutral offense. A married woman who has sexual relations with a man other than her husband commits adultery under Article 333. A married man cannot commit adultery at all; he may be prosecuted only for the distinct and narrower crime of concubinage under Article 334, and only in specific circumstances. This asymmetry — long criticized as discriminatory — remains the law today.
Adultery: The Offense of a Married Woman (Article 333)
Under Article 333, adultery is committed by a married woman who has sexual intercourse with a man not her husband, and by the man who has carnal knowledge of her knowing her to be married. Its elements are simple, which is precisely why it is easier to prosecute:
- The woman is married;
- She has sexual intercourse with a man who is not her husband;
- The man knows she is married.
Each act of sexual intercourse is a separate count of adultery. The penalty is prisión correccional in its medium and maximum periods — imprisonment ranging from two years, four months and one day to six years — imposed on both the wife and her partner. The prosecution need not prove scandal, cohabitation, or any aggravating circumstance; proof of the sexual act is enough.
Concubinage: The Offense of a Married Man (Article 334)
A husband’s infidelity is punished only as concubinage, and only if the prosecution proves one of three specific circumstances. Under Article 334, a husband is liable if he:
- Keeps a mistress in the conjugal dwelling (the family home);
- Has sexual intercourse under scandalous circumstances with a woman who is not his wife; or
- Cohabits with her in any other place.
Mere sexual infidelity by a husband — a one-time affair, for instance — is not concubinage. The prosecution must prove one of those narrow situations, which is why concubinage cases are notoriously difficult to win. The penalties are also lighter and unequal: the husband faces prisión correccional in its minimum and medium periods (six months and one day to four years and two months), while the concubine suffers only destierro — banishment from a specified area, not imprisonment.
Who Can File: The Rules for Private Crimes (Article 344)
Adultery and concubinage are private crimes. Under Article 344 of the Revised Penal Code, they cannot be prosecuted by the State on its own initiative. Three rules follow:
- Only the offended spouse may file the complaint — not a parent, sibling, or the prosecutor.
- The offended spouse must include both guilty parties if both are alive — the erring spouse and the paramour or concubine. One cannot be pursued while sparing the other.
- The case is barred if the offended spouse consented to or pardoned the infidelity. Condoning the affair, or continuing to live with the spouse after learning of it, can defeat the complaint.
What Infidelity Does and Does Not Allow
A criminal case is not the only consequence of infidelity, and the remedies should not be confused:
- Annulment or nullity of marriage: Infidelity by itself is not a ground to annul or nullify a marriage. It may, in a proper case, be evidence of psychological incapacity under Article 36 of the Family Code.
- Legal separation: Sexual infidelity or perversion is an express ground for legal separation under Article 55 of the Family Code, which lets the spouses live apart and separate their property without dissolving the marriage bond.
- VAWC: Marital infidelity that causes mental or emotional anguish to a wife may support a complaint for psychological violence under Republic Act No. 9262, a separate and often more practical remedy.
Because the criminal, civil, and protective remedies overlap and each has strict requirements, anyone considering a case for infidelity should get specific legal advice before acting.
Frequently Asked Questions
Can I file for annulment because my spouse cheated? No. Infidelity by itself is not a ground for annulment or declaration of nullity of marriage. It can be a ground for legal separation under Article 55 of the Family Code, and it may support a VAWC complaint for psychological violence, but a criminal case for adultery or concubinage is a separate matter.
Why is it easier to convict a wife than a husband? Adultery requires only proof of a single act of sexual intercourse by a married woman. Concubinage requires proof that the husband kept a mistress in the family home, cohabited with her elsewhere, or had relations under scandalous circumstances. Those narrow requirements make a husband's infidelity much harder to prosecute.
Can text messages or photos prove adultery? They may help, but the offense requires proof of sexual intercourse. Messages and photos are usually circumstantial and are rarely enough on their own. A lawyer can assess whether the available evidence is sufficient before a complaint is filed.
What is the penalty for adultery and concubinage? Adultery is punished by imprisonment from two years, four months and one day to six years for both the wife and her partner. A husband convicted of concubinage faces six months and one day to four years and two months, while the concubine suffers destierro, or banishment, rather than imprisonment.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you are dealing with marital infidelity and want to understand your criminal, civil, and protective options, our firm is available to assist. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.